Governor Arnold Schwarzenegger singed a bill limiting the ability of state and local public agencies to collect attorney’s fees under the anti-SLAPP law. -DB
California Newspaper Publishers Association
August 7, 2009
A barrier to citizen enforcement of the state’s public records and open meeting laws was eliminated yesterday when Gov. Arnold Schwarzenegger signed SB 786 by Sen. LelandYee (D-San Francisco). Pushed by CNPA, the California First Amendment Coalition and Californians Aware, the new law limits the ability of cities, counties and state agencies to collect attorney’s fees under the anti-SLAPP law.
SB 786 amends California’s anti-SLAPP law and says that the attorney fee award against plaintiffs that is generally available to prevailing defendants in a case dismissed on a motion to strike under the law is not available for causes of action filed to enforce the Ralph M. Brown Act, the Bagley-Keene Open Meeting Law or the public’s right to government information under the California Public Records Act (CPRA).
The need for the bill arises from the plight of Cal Aware and its former President Rich McKee, who, along with a sitting school board member, sued the Orange Unified School District Board for alleged violations of the Ralph M. Brown Act. From Cal Aware’s letter to the governor:
In 2007 we filed an action for declaratory relief—not damages—against a school district, alleging violations of the Brown Act, the CPRA and the First Amendment. We challenged the board of trustee majority’s censure of one of its members for his open session criticism of board action and staff performance, and the superintendent’s editing of those remarks out of the video recording distributed for cable TV replay. Our belief at the time was (and still is) that the public has a right to hear even the harshest criticism by an elected member of a government body as to how the body has dealt with any issue—even a personnel matter—on which it has acted.
But the trial court dismissed our action upon the district’s special motion to strike under Code of Civil Procedure Section 425.16, the anti-SLAPP law, concluding in effect that the board majority’s right to express its opinion through a resolution of censure (contrary to its own policy) was superior to that of the trustee it censured, and that the superintendent’s editing of the video recording violated neither public records nor free speech law since the original recording was available intact at the district office for whoever wished to view it.
The California Court of Appeal agreed and upheld the trial court’s judgment. As a consequence, we were held liable to pay the district’s attorney’s fees and costs for trial and appeal totaling more than $80,000. As a very small nonprofit organization with slim resources, we were unable to bear more than a small share of this obligation. If Californians Aware had been forced to satisfy the judgment alone it would have almost certainly sent us into bankruptcy. Fortunately for us but disastrously for him, almost all of the liability became the burden of our co-plaintiff (and president when we filed the action), Richard McKee. As a chemistry teacher at Pasadena City College, Mr. McKee eventually had to deplete his life savings to accumulate this amount, in the meantime having had his wages garnished and a lien placed on his home.
Had it not been for the automatic attorney fee imposition on a plaintiff whose case is dismissed under Section 425.16—“You lose, you pay”—we and Mr. McKee would have been exposed to this fee-shifting burden only if the court had made a finding that our actions under the Brown Act and CPRA were “clearly frivolous” (Government Code
Sections 54960.5 and 6259), a finding we are confident could not have been made.
SB 786 was also supported by the ACLU and opposed by the California State Association of Counties, the League of California Cities and the California School Board Association. The law becomes effective January 1, 2010. CNPA staff thanks Sen. Yee and his able staffers Adam Keigwin and Eduardo Martinez for shepherding this important bill through the process.
Copyright 2009 California Newspaper Publishers Association